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union kNOw – December 2017

By Philip B. Rosen, Jonathan J. Spitz and Howard M. Bloom
  • December 22, 2017

Let’s Not Get Too Giddy

Much of the employer community may be giddy as a result of the December 14 and 15 National Labor Relations Board decisions issued in the twilight of Chairman Philip Miscimarra’s term. Taking final advantage of a 3-to-2 Republican majority, the Board issued employer-friendly decisions overturning Obama-Board precedents on the standards for determining appropriate bargaining units, joint employer liability, and the lawfulness of employers’ facially neutral workplace rules and policies. Additional Obama-Board precedents may be future targets, but, with Board membership now comprising two Republicans and two Democrats, employers must wait. While President Donald Trump is expected to fill the fifth seat with another Republican, it may be many months before a new member is confirmed.

You Have the Opportunity to Comment

The NLRB has invited public comment on three questions related to the “quickie election rule.” It has solicited input in deciding whether to maintain the rule as is, rescind it, or modify it. Board Chairman Philip Miscimarra and Trump appointees Marvin Kaplan and William Emanuel approved the Request for Information (RFI). Board Members Mark Gaston Pearce and Lauren McFerran, Obama appointees, dissented. Responses to the RFI (limited to 25 pages) must be submitted by February 12, 2018. Employers, employer groups, and trade associations should weigh in. Jackson Lewis attorneys are available to assist in drafting and submitting comments.

When is a Question Not a Question?

Before issuing its RFI about the “quickie election rule,” the five-member NLRB voted on whether to seek public comments on the three questions. To the surprise of members Miscimarra, Kaplan, and Emanuel (in their view, “none of the questions suggests a single change in the Board’s representation-election procedures”), Pearce and McFerran voted against asking for public comments. According to the majority’s response to Pearce’s and McFerran’s dissents, published in the Federal Register, Pearce and McFerran “objected … because, among other things, they believe that (i) the Election Rule has worked effectively (or even, in Member Pearce’s estimation, essentially flawlessly), (ii) any request for information from the public about the Rule is premature, (iii) merely requesting information reveals a predetermination on our part to revise or rescind the Election Rule, and (iv) future changes will be based on single ‘alternative facts’ and ‘manufactur[ed]’ rationales.”

The majority responded by somewhat derisively recalling the way the Obama Board went about promulgating the 2014 rule:

One thing is clear: issuing the above request for information is unlike the process followed by the Board majority that adopted the 2014 Election Rule. The rulemaking process that culminated in the 2014 Election Rule (like the process followed prior to issuance of the election rule adopted by Members Pearce and [Craig] Becker in 2011) started with a lengthy proposed rule that outlined dozens of changes in the Board’s election procedures, without any prior request for information from the public regarding the Board’s election procedures. By contrast, the above request does not suggest even a single specific change in current representation-election procedures. Again, the Board merely poses three questions, two of which contemplate the possible retention of the 2014 Election Rule.

Ouch! Unions’ Dismal Decertification Stats

According to the latest Labor Relations Institute Union Scoreboard, the Teamsters union was decertified more often than any other union during the one-year period beginning October 1, 2016, and ending September 30, 2017. During that time, the Teamsters were involved in 46 decertification elections and lost 89 percent of them. The International Brotherhood of Electrical Workers (IBEW) was a distant second, with 20 decertification elections, losing 65 percent of the time. Overall, companies won decertification elections 68 percent of the time.

Please contact a Jackson Lewis attorney with any questions about these and other workplace issues.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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